JURISDICTIONAL QUESTIONS CONCERNING NATURAL GAS PIPELINES: BIG BEND CONSERVATION ALLIANCE V. FEDERAL ENERGY REGULATORY COMMISSION

• Published in: Energy law journal Vol. 41; no. 1; pp. 149 - 163
• Main Author: Gerow, Blake H
• Format: Journal Article
• Language: English
• Published: Washington Foundation of the Energy Law Journal 01.01.2020
• Subjects: Air quality; Commerce; Cultural resources; Energy conservation; Environmental impact; Environmental policy; Federal jurisdiction; Federal regulation; Gas pipelines; Gas production; Gasoline prices; Geology; Government agencies; Groundwater; Interstate commerce; Intrastate commerce; Jurisdiction; Land use; Natural gas; Natural gas industry; Natural gas prices; Oil and gas industry; Oil and gas production; Pipelines; Public interest; Recreation areas; Recreational use; Special status species; Surface water; Transportation industry; Wildlife; United States > US; Texas; Mexico
• ISSN: 0270-9163

"6 Finally, the most recent major federal regulation of the natural gas transportation industry came with the passage of the NGPA, which gave FERC authorization to regulate natural gas production and transmission in intrastate commerce, through section 311 of the NGPA, in addition to interstate commerce, through section 7 of the NGA.7 Part III analyzes the D.C. Circuit's reasoning in Big Bend and the uncertainty created as to when natural gas pipeline projects, though intrastate in nature, might be subject to federal jurisdiction.8 Additionally, it provides a discussion of the potential future implications of Big Bend on the natural gas industry. "23 The connected-actions doctrine, in theory, prevents the government from "segmenting" its own federal actions into distinct projects so that it avoids addressing the full environmental implications of the project as a whole.24 C.The Natural Gas Policy Act of 1978 In 1978, Congress passed NGPA, which gave FERC authorization to regulate natural gas production and transmission in intrastate commerce, in addition to interstate commerce.25 Section 311 of the NGPA permits FERC to "authorize any intrastate pipeline to transport natural gas on behalf of . . . any interstate pipeline. "26 fERC's authorization of an intrastate pipeline to transport gas on behalf of an interstate pipeline does not trigger section 7 of the NGA.27 The NGPA provides that FERC jurisdiction under the NGA "shall not apply" to transportation authorized under section 311.28 However, FERC jurisdiction over interstate pipelines is fact-specific and depends on whether the pipeline receives the proper authorizations and how the pipeline is being utilized.29 While FERC has recognized the ability of intrastate pipelines to provide section 311 service even after being placed into service, FERC has also exercised section 7 jurisdiction over facilities that were seemingly intrastate but that were constructed with the purpose of providing section 311 service.30 D.The Presidio Border Crossing Project On May 28, 2015, FERC received an application from Trans-Pecos Pipeline, LLC (Trans-Pecos) seeking "a Presidential Permit and authorization under section 3 of the [NGA] to site, construct, and operate a border crossing facility (the Presidio Border Crossing Project)" in Presidio County, Texas, to export natural gas across the border between the United States and Mexico.31 Trans-Pecos included in the plans of the Presidio Border Crossing Project a proposal to construct and operate a Texas intrastate pipeline, the Trans-Pecos Pipeline, subject to the jurisdiction of the RRCT.32 The Trans-Pecos Pipeline would transport natural gas to the proposed border crossing facility from a hub in Pecos County, Texas, and would "interconnect with other Texas intrastate pipelines, as well as processing plants," and "may later interconnect with interstate pipelines. "39 Prior and in response to the NOI, 653 concerned individuals filed comments on the issue.40 A majority of the comments concerned Tran-Pecos's planned intrastate pipeline through Texas.41 On January 4, 2016, FERC issued a sixty-one page EA of the Presidio Border Crossing Project, addressing geology, soils, groundwater, surface waters, wetlands, vegetation, wildlife and aquatic resources, special status species, land use, recreation, special interest areas and visual resources, cultural resources, air quality and noise, safety and reliability, and alternatives.42 Additionally, the EA addressed the cumulative impacts of the border crossing project related